Grocery stores and other retail outlets participating in the Supplemental Nutrition Assistance Program do not have to disclose SNAP redemption data under the Freedom of Information Act, the Supreme Court ruled today.

“At least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is ‘confidential’ within the meaning of [FOIA] Exemption 4,” Justice Neil Gorsuch wrote for the majority in the 6-3 decision. Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor dissented.  

FOIA Exemption 4 protects "trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential,” according to a Justice Department FOIA guide .

The decision came in a case brought by the Sioux Falls, S.D., Argus Leader, against USDA, which eventually dropped out and was replaced as defendant by the Food Marketing Institute. FMI said today it “is grateful that the court clarified FOIA’s Exemption 4 to prevent the disclosure of confidential commercial information that would put businesses at competitive disadvantages.”

Argus Leader news director Cory Myers said the newspaper is "disappointed in today’s outcome, obviously," according to a story in the newspaper. "This is a massive blow to the public’s right to know how its tax dollars are being spent, and who is benefiting. Regardless, we will continue to fight for government openness and transparency, as always."

The majority rejected the 8th Circuit’s holding that stores would have to demonstrate “substantial competitive harm” in order to qualify for an exemption under FOIA and not have to release the data.

Gorsuch said the “substantial competitive harm” came from a 1974 D.C. Circuit Court of Appeals decision, National Parks & Conservation Assn. v. Morton, which relied too heavily on the legislative history of FOIA. Courts should instead go first to the text of the law, Gorsuch wrote.

“Not only did National Parks inappropriately resort to legislative history before consult­ing the statute’s text and structure, once it did so it went even further astray,” Gorsuch said. “The court relied heavily on state­ments from witnesses in congressional hearings years earlier on a different bill that was never enacted into law.”

Breyer, however, said FOIA’s Exemption 4 imposes some type of “harm” requirement. “After all, the word ‘confidential’ sometimes refers, at least in the national security context, to information the disclo­sure of which would cause harm,” he said.

In addition, he wrote, “The whole point of FOIA is to give the public access to information it cannot otherwise obtain. So the fact that private actors have ‘customarily and actually treated’ commercial information as secret … cannot be enough to justify nondisclosure. After all, where information is already publicly available, people do not submit FOIA requests — they use Google.”

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